Wakilii

Hay v Hay (Matrimonial Cause 15-33.)

East African Court of Appeal · [1934] EACA 27 · 1934 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Petition for declaration of nullity of marriage
Decision
Petition for declaration of nullity dismissed; no finding made as to the validity or otherwise of the marriage

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the use of an assumed name or a name obtained by repute in the celebration of a marriage does not justify a declaration of nullity under section 34(2)(b) of the Marriage Ordinance unless the use of such name is wilful and for a fraudulent purpose. Where both parties knowingly used a false name without fraudulent intent, and where the name was partially accurate and known by repute, the marriage is not void. The petition for nullity was dismissed.

Outcome

Petition for declaration of nullity dismissed; no finding made as to the validity or otherwise of the marriage

Facts

The petitioner, an officer in the Indian Army, met the respondent in 1930 when she was known as Mrs. Robotham. They maintained correspondence and in April 1933 agreed to marry in Mombasa. Before the marriage, the petitioner gave notice and swore an affidavit identifying the respondent as Helen Robotham. On the evening before the marriage, the respondent disclosed that she had never been married to Harry Robotham and that her real name was Voss, being the divorced wife of E.E. Voss. Despite this disclosure, the parties proceeded with the marriage without altering the affidavit. The petitioner subsequently sought a declaration of nullity on the ground that both parties knowingly and wilfully acquiesced in the celebration of the marriage under a false name, contrary to section 34(2)(b) of the Marriage Ordinance.

Issues

  1. Whether the use of a false or assumed name by one party to a marriage, with the knowledge and acquiescence of both parties, renders the marriage null and void under section 34(2)(b) of the Marriage Ordinance Cap. 167.

Orders

  • Petition dismissed.
  • No order as to costs.

Rules and key headnotes

Family Law — Nullity of Marriage — Use of False or Assumed Name — Requirement of Wilful Fraudulent Purpose
The use by one of the parties to a marriage of an assumed name or a name obtained by repute does not justify a declaration of nullity under section 34(2)(b) of the Marriage Ordinance unless the use of such name is wilful and for a fraudulent purpose.
Statutory Interpretation — Meaning of 'Wilfully' — Requirement of Intentional Flouting of Law
The word 'wilfully' in section 34(2)(b) of the Marriage Ordinance means an intentional flouting of the law, a deliberate and defiant course of action with perhaps some ulterior motive or design in view, not merely a knowing act.
Family Law — Nullity of Marriage — Partial Variation in Name — Explanation and Fraudulent Intent
Where the variation in name is only partial, it is always open to explain the supposed misdescription, and the presence or absence of fraudulent intent and motives of the parties becomes of marked importance in determining whether the marriage is void.
Family Law — Validity of Marriage — Policy of Courts to Uphold Marriages
It is the policy of the courts to declare whenever possible in favour of the validity of a marriage, and the wording of provisions relating to nullity must be carefully examined in light of this policy.

Legislation cited (4)

  • Marriage Ordinance Cap. 167 s.34(2)(b)
  • Marriage Ordinance Cap. 167 s.7
  • Marriage Ordinance Cap. 167 s.11
  • Marriage Act 1823 s.22

Cases cited (14)

  • Attorney General v Walthamshow (11 T.L.R. 83)
  • Brealy, falsely called Reed v Reed (103 E.R. 601)
  • Templeton v Tyree (L.R. 2 P. & D. 420)
  • Gompertz v Denbigh (L.R. 13 Eq. 369)
  • R v Billinghurst (105 E.R. 603)
  • Clowes v Clowes (163 E.R. 697)
  • R v Tibshelf (109 E.R. 758)
  • Holmes v Simmons (L.R. 1 P. & D. 523)
  • Midgely v Wood (30 L.J.P.M. & A. 57)
  • Pouget v Tomkins (2 Hag. Con. 143)
  • Rex v Burton-upon-Trent (1 M. & S. 537)
  • Ewing v Wheatley (2 Hag. Con. Rep. 175)
  • Haswell v Haswell and Gilbert (51 L.J. P.D. & A. 150)
  • Bevan falsely called McMahon v McMahon (30 L.J. P. M. & A. 61)

Full judgment

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Hay v Hay (Matrimonial Cause 15-33.) [1934] EACA 27 (1 January 1934)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.